Over two years ago, voters passed Measure T that was designed to close loopholes in a previous initiative that sought to protect the Fremont hills from development. The most simplistic portions of Measure T are now under close scrutiny of landowners, developers, legal minds and preservationists.

Louis Armstrong sang, "Potato, potahto, Tomato, tomahto, Let's call the whole thing off" and for some folks, weary of the bickering, they might agree. However, protecting the hills, most would concur, is worth the battle. For a law that has been in effect since November 2002, precious little has been resolved.

Examining provisions of Measure T reveals room for discussion and interpretation. Currently, Dr. Goney Sandhu is testing the limits of Measure T. Unfortunately, the Fremont Planning Commission and the Fremont City Council have little precedent to lean on when deciding something as basic as the definition of a hilltop, a ridgeline, a road, a 30% slope, etc. The intent of Measure T is a tricky thing. Where common sense may dictate one approach, the law can be another matter.

The planning commission recently voted to ignore staff recommendations and allow the construction of Dr. Sandu's home on a knoll, hillock, saddle, or whatever someone wants to call it above Fremont. This is the second time around for this project. The planning commission approved a Conditional Use Permit (CUP) last year but it was subsequently denied by council. We are now in round two. Arguments in favor of Dr. Sandu's request ranged from well reasoned to silly, but he got what he wanted. Now, if contested, he will again face the senior group (city council) that has in the past, been opposed. This is a classic case of what to do when almost everything about the project offends some portion of Measure T, yet a property owner's right to build must be preserved.

One argument says there is a definite prohibition of building beyond a 30% slope, yet this is countered by the pre-existence of something that might be called a road. Is it? "You like tomato and I like tomahto." Do we call any ranch path used by four-wheel drive vehicles a road? When does a wide firebreak, built for passage of emergency vehicles, become a road in the vernacular of Measure T? There needs to be some limit to this or else "roads" that defy the 30% grade will pop up everywhere.

The planning commission appeared to agree with the good doctor that a path that can accommodate vehicles is a road no matter whether improved, public or private. The argument is that if a "road" exists and cuts the 30% plane, reducing it to less than that magical figure, then the prohibition disappears. I used to think that I understood the meaning of hillside grades and hilltops but that was before Measure T. Now, it appears that what Webster knew all along is true - language is malleable and in the eye of the beholder. Witness the word "cool" that can mean "hot" and so on.

What is to be done? City council must take a definitive stand on the meaning of Measure T without regard to the possibility of lawsuits or popularity. It is only when there is a single, written, concise definition of terms that someone can challenge or accept them. Tools such as the matrix devised by staff have little meaning if each deliberative body finds ways to redefine or circumvent provisions based on personal or political bias. By the same token, when a clear argument is made, council needs to listen and either reject it based on similar clear and concise reasoning or bow to its logic. In any case, Dr. Sandu deserves a definitive response that is clear and unequivocal. Approve or deny the permit, but do so with a lucid argument that sets solid precedent for all who will follow.